Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. photo:contributed

Kootnekoff: Medical marijuana and work – know your rights

Are you an employee who uses cannabis to manage a medical condition?

Are you an employer with an employee that fits this description?

Do you wonder what your rights are?

It is not necessarily as simple as an employee providing a doctor’s note, and then expecting the employer to accommodate cannabis use, even for medical purposes.

Cases in this rapidly evolving area are very fact specific and must be analyzed individually.

Some commonalities are emerging, though.

Many employers have drug and alcohol policies. These sometimes provide for certain types of drug and alcohol testing. They also typically require employees to report any use of medications that could impact the employee’s ability to safely perform his or her duties. Such disclosure requirements are generally legal.

Employers also have obligations under the British Columbia Occupational Health & Safety Regulation to ensure the health and safety of their workers.

Workers have an obligation to inform a supervisor or the employer of any physical or mental impairment “which may affect the worker’s ability to safely perform assigned work.”

An employee who may perform safety-sensitive activities and is required to report use but fails to do so may in some cases be dismissed, with just cause. This means no severance.

As an employee, once you report your use of cannabis or medication to your employer, be prepared for a number of things to happen:

  1. If you are in a safety sensitive role, expect to be quickly moved out of that role. This is generally legal, because of employers’ obligations to manage safety risks in the workplace.
  2. Expect questions to be asked. Your employer may engage in what might feel like a version of “20 questions”. Employers will often assess the frequency, extent and types of substances being used and, if cannabis, the strain. They will also seek information on your prognosis.
  3. Expect to be asked to provide your medical authorization. Your employer will likely inspect that document, and make a copy of it.
  4. Expect for your physician, the one who provided the authorization and any others who may be treating you, to be contacted and questioned.
  5. You may be asked to attend a medical assessment.

As an employee, do you have to cooperate with these requests? Generally, yes, at least up to a point. If you are requesting accommodation, you generally have an obligation to cooperate with the employer’s attempts to accommodate you.

As an employer, do you need to go through all of this? Sometimes. These are practical and wise steps to take, in many cases.

Generally, an employer has a responsibility to understand what it is being asked to accommodate, including the employee’s prognosis, the potential impact on the employee’s ability to do his or her job, and any work restrictions that may be required.

Employers should be aware that employees who consume cannabis for medicinal purposes may use higher amounts, and use more regularly, than those who consume recreationally.

If you are an employer and have not already done so, develop a drug and alcohol policy, in consultation with a lawyer experienced in employment law and an experienced occupational health professional, with knowledge of this area. Ensure your policy reflects legal cannabis.

This is best done before an issue arises, rather than after.

If you receive a request from an employee to accommodate medical marijuana, be methodical. Strive to fully understand the employee’s situation. Then, determine if and how you can accommodate it.

Whether you are an employee or an employer, this is an area in which it is crucial for you to get advice from an experienced lawyer, and an experienced occupational physician or other occupational health professional, in all cases with knowledge of medical cannabis as it relates to work.

The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Specialist advice from a qualified legal professional should be sought about your specific circumstances. If you would like to reach us, we may be reached at 250-764-7710 or info@inspirelaw.ca. Check out our website, www.inspirelaw.ca.

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